Scott Lange tees up on “special prosecutor” hired by Nichols

—–Original Message—–
From: Duncan K. Fobes []
Sent: Friday, June 16, 2017 3:46 PM
To: Scott Lange
Cc: William John Crittenden; Jan D. Larsen; Tim T. Parker
Mr. Lange,Thank you for your email.  I would like to respond to some points in your email:

1. I can confirm that my client does not want to offer any money in response to your demand for $54,705.01.

2. I do not represent the Washington Counties Risk Pool, including on coverage issues.  I am one of the panel attorneys  for the Pool and have been retained to represent some of its member counties, including Clallam County.

3. I am not a public agency.  I am a private attorney and independent contractor to Clallam County in this case.  I do not consider myself subject to the Public Records Act.

4.  I have not been authorized to waive any of Clallam County’s privileges in this matter.

Thank you and I hope you have a nice weekend,

Duncan K. Fobes, Principal
Patterson ∙ Buchanan ∙ Fobes & Leitch, Inc., P.S.
DIRECT 206.462.6704 | TOLL FREE 800.722.3815

—–Original Message—–
From: Scott Lange []
Sent: Monday, June 12, 2017 12:57 PM
To: Duncan K. Fobes <>
Cc: William John Crittenden <>
Mr. Fobes,Since our phone conversation I have been reviewing documents and considering the merits of re-opening my case against Clallam County.

One of the things I have been mulling over is the question why we needed to wait to have a phone conversation for you to advise me that your client was not interested in my proposal to resolve all matters in exchange for paying the unreimbursed legal balance of $54,000.  It struck me that your decision to forego a written declination of my proposal may have well be calculated.
Initially my thought was that you were retained outside counsel for Clallam County.  After reviewing the RCW on special deputy prosecuting attorneys, however, I realize that you are acting in the capacity of Mark Nichol’s deputy and a member of his staff.  Which means that you can be expected to follow his legal strategy when it comes to contested matters.

Which, without further explanation, leads me to the conclusion that you need to re-convey the information we discussed in writing.  I would like to formally document the position Clallam County has taken in response to my proposal to conclude this mess for what most fellow professionals would agree is a reasonable sum.  We have already seen, on multiple occasions, that Mr. Nichols has no concept of fiduciary responsibility to taxpayers.
Instead of making difficult decisions to resolve matters, he seems to believe that his legal assessments are sound and that the best strategy is to ignore or deny, then force adversaries to file suit, roll the dice on defenses, and pay the penalties when the legal strategy doesn’t pan out (or, in this case, leaving the problem to his successor).  I just want to document for the record that we are at step one in the Nichol’s approach to dealing with County misdeeds.  Kindly, by letter or reply email, confirm that your client is not interested in entertaining my proposal.

If you could provide some clarity on a few peripheral issues at the same time I would be most appreciative.  You recall, I hope, the issues I raised relevant to conflict of interest.  I note that Mr. Nichols has dumped yet another potentially insured matter onto the Counties Risk Pool in the form of the recently filed sexual harassment lawsuit filed against him.  It is difficult for me to understand how you can represent Mr. Nichols as a special deputy prosecuting attorney when you have another client that may have contrary interests to those of Mr. Nichols.  Which causes me to wonder whether you are protected for potential conflicts with professional rules and standards by the errors and omissions liability insurance your County client requires or via the indemnification provisions for County employees.
Would you mind sorting this out for me in your response?  My own thought is that there is a conflict of interest and that you should probably not be acting as deputy prosecuting attorney.  My guess is that Mr. Nichols has already resolved this and as a client of government I would be most interested in his reasoning if you could share it.

I am also wondering if, as deputy prosecuting attorney, you are now subject to Public Records Act requirements.  You may be aware that Clallam County has waived its legal privilege in regard to most of the subject matter pertaining to my PRA litigation against it and I am thinking perhaps this also means I have a legal right to access those communications between you and Mr. Nichols regarding the subject matter.  No doubt you will not provide the clarity I seek on this question so I will have to rely on my highly competent legal counsel to get the answers I seek there.

Finally, I can advise you that Mr. William Crittenden’s representation appears imminent and that he will be a tremendous resource in resolving some of the questions I have noted above.  Initially, Mr. Crittenden and I will focus on reviewing the facts and making a determination regarding the merits of my case to reopen my PRA action against Clallam County and your client.
When in his sole discretion he believes it is appropriate, in my best interest, and consistent with his professional standards pursuant to the rules of professional conduct, I will relinquish all communications with you and your client to him.  In other words – and I apologize for not agreeing to Mr. Nichol’s preferred methodology for resolving claims against the County – this may be your last opportunity to resolve this matter for the previously requested sum of $54,705.01.  Mr. Nichol’s legal judgment and associated decisions responding to my legally established legal violations are the direct and proximate cause of the legal fees I incurred and my request must be viewed as entirely reasonable.

Let me be clear.  In your requested reply to this communication you repeat what you said in our phone conversation, I intend – subject to input from counsel – to pursue an amount considerably in excess of the total stated above.  You may recall that as a core principles of legislative policy penalties under the PRA should be sufficient to deter violators from future violations.  I think in this case, where I have inside witnesses and a confirming letter from one of your fellow deputy prosecuting attorneys, it is very clear that Mr. Nichols feels he can continue to game the system when he thinks it is to his advantage.  As a client of government I don’t think that is a fair proposition.

I won’t hold my breath to hear back from you.  As the record clearly reflects, I try to play my cards face up.  I’m giving you the advantage of my thoughts here.  If there was nothing pre-meditated about the manner in which you conveyed your client’s refusal to entertain my resolution proposal then you should have no difficulty re-stating your position formally and in writing.  If I don’t receive a response, however, please note that I will interpret your silence to mean it was your intent not to document our “dialogue”.

Scott Lange

 And another:

Mr. Fobes,

I wanted to send a separate addendum to my last message, primarily for the benefit of the media and any coverage they want to provide as this new matter unfolds.

You have suggested that you are “independent” and that there is no conflict of interest associated with the services you are providing to the County in connection with the matters I’ve raised.  I assert that Mark Nichols has compromised your position on this by the very manner in which he engaged you as a Deputy Prosecuting Attorney.  I think this can be best explained by going through the normal process by which insurance “panel counsel” would be involved in disputed matters which may or may not be the subject of insurance coverage.

As you know, when a claim or summons and complaint is received where insurance coverage may apply, it is generally accepted practice for counsel or the risk management staff to forward copies of the claim or complaint to the insurer as required by policy conditions.  This “tender” of claim carries with it the implied or expressed expectation by the insured that the policy should respond to defend the action and/or settle or try the matter on the insured’s behalf.

There is sufficient reason to believe that Clallam County tendered my claims regarding the Cebelak land use violations to its insurers.  Records I have reviewed indicate Mark Johnsen represented the County on behalf of the Washington Counties Risk Pool, implying that a tender of claim was made and that WCRP accepted its duty to defend the matter.  The acceptance of the duty to defend occurred in recognition of how various elements of my claim triggered the coverage provisions of the insurance policy.  Specifically, I asserted property damage in the form of erosion of my shoreline property and I also asserted potential civil rights violations associated with the County’s suppression of due process in connection with my constitutionally protected property rights.  I think if you review the WCRP insuring agreement you will agree that these are coverage triggering events.

Now for the benefit of Mr. Wilson, an insurer may not immediately deny insurance coverage if the wording of the claim or complaint contains allegations that may potentially trigger and insurance obligation under the insurance contract.  In cases where the insurer disputes the availability of insurance coverage it issues a “reservation of rights” letter acknowledging the duty to defend, accepting the tender of defense, but reserving the right to deny coverage and withdraw from the proceedings later should facts establish the matter is outside the purview of the coverage provided by the policy.

Again, noting that the WCRP coverage was clearly triggered by the Cebelak related claims, and also noting that the Cebelak and Kitsap County PRA matters were the subject of a combined, non-itemized pecuniary settlement, Mr. Nichols needed only to tender the matters to WCRP to achieve defense services under the insurance agreement for those matters.  A separate, purported “independent” contract would not have been necessary and payment for legal services received would have been subject to the insurance contract.  There would be no question as to the interests involved – Mr. Nichols representing the County’s interests;  WCRP/you representing the County’s interests via the tender and terms of coverage; and WCRP representing its own interests via its coverage counsel as to its duty to defend and/or indemnify.

Instead, Mr. Nichols executed a Deputy Prosecuting Attorney agreement with you.  This altered the interests of the parties.  Under the DPA agreement your loyalties are now to the Prosecuting Attorney rather than to the defendant in general and those loyalties are no longer constrained by the terms of coverage.  However, as you continue to represent WCRP in whatever capacity “panel counsel” means to you, divided loyalty becomes a possibility.

Not that we must leave this analysis to the matters at hand.  I have preserved the record of the prior Nichol’s litigated matter involving several Clallam County employees who sued Mr. Nichols for age and gender discrimination.  As in the Cebelak and Public Records Act matters, Mr. Nichol’s has a clear personal interest in the litigated matters.  It seems we have yet another Nichol’s situation at hand with the recent litigation filed against him for sexual harassment.  If in each case Mr. Nichols retains you or other members of your firm as a Deputy Prosecuting Attorney, he creates a significant conflict of interest.  Independent control of any of these matters by the insurer may result in a finding unflattering to Mr. Nichol’s public image and political career.  Under the DPA agreement, however, Mr. Nichols can control the outcome of the case.  Under the DPA agreement Mr. Nichols has the power to order counsel who would otherwise independently represent the WCRP to subordinate counsel’s interests to the interests of Mr. Nichols.  Such subordination may include directing the WCRP and/or its counsel to settle rather than try a matter, subjecting the County and its taxpayers to expense, or directing the defense or settlement of a matter so as to preclude availability of coverage.

I am concerned – and I believe my fellow citizens of Clallam County should be concerned that – by using the Deputy Prosecuting Attorney’s approach to responding to claims made against the County that are directly attributable to the acts and failures to act by Mark Nichols – Mr. Nichols is extending control in a manner primarily devised to protect his interests over those of the County and the people the County works for.  In other words, the DPA agreement serves to suppress transparency and enables Mr. Nichols to divert considerable amounts of taxpayer money to avoid the embarrassment he should accept as a consequence of a long running series of legal gaffs and violations on his part.

Mr. Fobes by going along with the DPA arrangement devised by Mr. Nichols you become a participant in the misuse of public funds and the center of a coming storm on the subject of conflict of interest.  I understand you may find me to be irritating in how I analyze the law and apply it to the vast expanse of questionable governance going on in Port Angeles these days, but just keep in mind that your client has been doing the same thing for some time now, only his antagonisms are directed at honest citizens and fellow elected officials.  Your client took license with the Public Records Act in coercing Ms. Barkhuis into submission with his agenda.  It is an age old adage that those who live by the sword die by the sword.  Mr. Nichols has invited the inquiry and assertions I now make and I assure you that I will take every advantage of the public records act – just as he has done – to make sure his constituents understand the various offenses Mr. Nichols has committed.  From direct involvement with Mr. Nichols I believe he is unsuitable for the office he holds and I intend to help unseat him using all legal means available to me.


Scott Lange

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